The applicant, Mrs Ursula Knauth, is a German
national who was born in 1944 and lives in Berlin. She was represented
before the Court by Mr F. Wolff, a lawyer practising in Berlin.

A. The circumstances of the case

The facts of the case, as submitted by the parties,
may be summarised as follows.

1. Background to the case

The applicant had been working as a nursery-school
teacher (Kindergärtnerin) in Berlin, in the German Democratic Republic
(GDR), since 1962. After the reunification of Germany, and in accordance
with the relevant provisions of the Treaty of 31 August 1990 on German
Unification (Einigungsvertrag – Articles 13 and 20 § 1 taken together
with Article 1 §§ 1-3 of Annex I, Chapter XIX, Subject A, Section III
– see “Relevant domestic law and practice” below), the applicant
was incorporated into the civil service of the Land of Berlin in the Federal Republic of Germany (FRG) and
continued working there as a nursery-school teacher.

On 6 December 1990 the applicant answered in
the negative when asked whether she had signed an undertaking to collaborate
(Verpflichtungserklärung)
with the GDR Ministry of National Security (Ministerium für Staatssicherheit – MfS – the GDR secret
police), and about any contacts she had had with it, and whether she
had received any gifts (Zuwendungen) for collaborating. After German reunification
those questions were asked of civil servants from the GDR seeking definitive
incorporation into the FRG civil service. The applicant stated that
she had replied fully and truthfully to the best of her knowledge and
belief (nach
bestem Wissen und Gewissen) and that she was aware of the fact
that an untrue answer on her part could result in her dismissal.

On 11 July 1994 a report by the federal commissioner
responsible for examining data of the GDR State security police (Bundesbeauftragter
für die Unterlagen des Staatssicherheitsdienstes der ehemaligen DDR,
also known as the Gauck-Behörde) revealed that, after a contact period (Kontaktphase)
from 13 June to 8 October 1973, the applicant had been registered as a
security collaborator (Gesellschaftlicher Mitarbeiter für Sicherheit – GMS) of
the Ministry of Security between 8 October 1973 and 19 November 1979,
that on 8 October 1973 she had signed an undertaking to collaborate,
that she had participated in fourteen spy operations between 19 August
1974 and 29 May 1976 and that a ministry official had confirmed that
she had received gifts of money on five occasions.

On 17 August 1994 the applicant was questioned
about that report.

In a decision of 24 August 1994 the Land of Berlin, after consulting the Staff Committee (Personalrat),
dismissed the applicant for having collaborated with the GDR Ministry
of Security and having lied about her collaboration with that ministry.

2. Proceedings in the German courts

On 8 September 1994 the applicant appealed against
that decision, submitting that she did not remember having collaborated
with the Ministry of Security and that, in any event, her collaboration,
which had been of minor importance given that she had merely accompanied
her husband, went back to such a distant period that it could no longer
be held against her today and could not in any circumstances justify
her dismissal.

In a judgment of 24 March 1995 the Berlin Labour
Court (Arbeitsgericht)
dismissed the applicant’s appeal and held that her ordinary dismissal
(with notice) (ordentliche Kündigung) was justified under section 1(2) of
the Unfair Dismissal Act (Kündigungsschutzgesetz – see “Relevant domestic law and
practice” below).

The court held that the applicant was not fit
to be a member of the civil service because she had untruthfully (wahrheitswidrig)
declared that she had neither signed an undertaking to collaborate nor
collaborated with the GDR Ministry of Security. The authorities had
properly questioned her in that connection and the applicant had objectively
and subjectively given an answer which had subsequently been proved
to be untrue.

The court concluded that the Land of Berlin’s interest in dismissing a person who had
previously lied to her employer about her collaboration with the GDR
Ministry of Security, which had been the instrument of repression in
that State, accordingly took precedence over the applicant’s age and
long years of service.

On 2 June 1995 the applicant appealed against
that judgment.

The Berlin Regional Labour Court (Landesarbeitsgericht) upheld that judgment on 26 October 1995.

The Regional Court held that the applicant’s
activity could be regarded as collaboration with the GDR Ministry of
Security for the purposes of Article 1 § 5 of Annex I, Chapter XIX,
Subject A, Section III of the German Unification Treaty (see “Relevant
domestic law and practice” below). The fact that she had accompanied
her husband in order to provide a smokescreen did not alter that finding.

In the Regional Court’s view, the applicant
could not have forgotten that she had collaborated with the Ministry
or that she had signed an undertaking. Indeed, she had carried out many
spy missions in the company of her husband and, in her undertaking,
had expressly declared that she wanted to protect the State from enemy
attacks. Furthermore, during questioning on 17 August 1994 the applicant
had herself declared that she had not attached any importance to her
past collaboration, which showed that she remembered it.

The applicant had therefore given an untruthful
answer and was accordingly unfit to be a member of the FRG civil service.

The Regional Court then reiterated that a “lack
of personal aptitude” within the meaning of Article 1 of Annex I,
Chapter XIX, Subject A, Section III of the German Unification Treaty
(see “Relevant domestic law and practice” below) could derive from
a lack of trust and from reasons connected with the employee’s character.

The Regional Court added that in the present
case the authorities had been entitled to expect the applicant to reply
truthfully to the two questions that had been put to her. Indeed, the
authorities had to be able to check whether the applicant, who had not
been chosen by them as an employee, but had been employed in accordance
with the provisions of the German Unification Treaty, could continue
to be a member of the civil service or whether she should be dismissed
for having collaborated with the GDR Ministry of National Security.
The Regional Court found that the lack of truthfulness and honesty in
her reply had destroyed the confidence which the authorities had to
have in the applicant and made her continued employment in the civil
service unacceptable.

On 21 March 1996 the Federal Labour Court (Bundesarbeitsgericht)
refused to entertain an appeal on points of law by the applicant on
the ground that the ordinary courts’ decisions had been consistent
with its own case-law and with that of the Federal Constitutional Court
(Bundesverfassungsgericht).

On 3 December 1997 a bench of three judges of
the Federal Constitutional Court refused the applicant leave to appeal.

B. Relevant domestic law and practice

Section 1(2) of the Unfair Dismissal Act provides:

“A dismissal shall be socially unjustified
unless it is based on grounds relating to the employee himself or to
his conduct...”

Article 13 of the Treaty of 31 August 1990 on
German Unification provides that the administrative bodies and other
institutions of the civil service in the former territory of the GDR
come under the authority of the government of the Land in which they are situated.

Article 20 § 1 of the Unification Treaty provides
that persons who were members of the GDR civil service at the time of
reunification are subject to the transitional provisions in Annex I.

Article 1 §§ 1-3 of Annex I to the Unification
Treaty, Chapter XIX, Subject A, Section III, provides for the incorporation
of civil servants from the GDR into the FRG civil service by means of
the substitution of the federal authorities and the Länder of the FRG for the GDR authorities in the existing
employment relationship.

As members of the GDR civil service belonged
to an institution that did not satisfy the criteria of a State based
on the rule of law, special provisions on dismissal were included in
Article 1 §§ 4-6 of Annex I to the Unification Treaty, Chapter XIX,
Subject A, Section III.

In a leading case the Federal Constitutional
Court held that Article 1 § 5 of Annex I to the German Unification
Treaty, Chapter XIX, Subject A, Section III was in conformity with the
Basic Law because a person who had collaborated with the Ministry of
National Security of the GDR did not generally satisfy the requisite
conditions for becoming a member of the FRG civil service. In any event,
dismissal required an assessment of each individual case during which
account had to be taken, inter alia, of the degree of involvement (Mass der Verstrickung) of the person concerned (see Collection
of Judgments and Decisions of the Federal Constitutional Court, vol.
96, pp. 189 et seq.).

According to the established case-law of the
Federal Labour Court, a public employer is entitled to ask a civil servant
if he or she collaborated with the Ministry of Security of the former
GDR and whether he or she signed an undertaking to collaborate. The
interest of the employer in obtaining a truthful answer takes precedence
over the civil servant’s right to decide for himself or herself which
information he or she is willing to disclose (informationelle Selbstbestimmung). Questioning the civil servant
in this way is designed to “cleanse” the civil service of staff
with a reprehensible past (vorbelastetem Personal) so that an efficient civil service
can be put in place (Schaffung einer leistungsfähigen öffentlichen Verwaltung)
in the general interest. Anyone who lies by declaring that they did
not sign an undertaking and did not collaborate with the Ministry of
National Security is generally unfit to be a member of the civil service
(see Collection of Judgments and Decisions of the Federal Labour Court,
vol. 74, pp. 120 et seq., and vol. 81, pp. 15 et seq.).

Article 242 of the Civil Code (Bundesgesetzbuch – BGB) lays down the principle of good faith
(Treu und
Glauben) in contractual relations.

Sections 19, 20 and 21 of the Law on the Data
of the former GDR State Security Police (Gesetz über die Unterlagen des Staatssicherheitsdienstes der ehemaligen
Deutschen Demokratischen Republik – Stasi-Unterlagen-Gesetz – StUG)
govern the conditions in which the commissioner may disclose data of
this ministry to third parties, and they authorise, inter alia, the disclosure of information about members of
the civil service.

COMPLAINTS

1. The applicant submitted that the use as evidence
against her of confidential information relating to her collaboration
with the GDR Ministry of National Security and her subsequent dismissal
from the FRG civil service had infringed her right to protection of
her private life as guaranteed by Article 8 of the Convention.

2. She also submitted that her dismissal had amounted
to discriminatory treatment in breach of Article 14 of the Convention
taken together with Article 8.

3. She maintained, lastly, that she had not had
a fair hearing within the meaning of Article 6 § 1 of the Convention.

THE LAW

1. The applicant submitted that the use as evidence
against her of confidential information relating to her collaboration
with the GDR Ministry of National Security and her subsequent dismissal
from the FRG civil service had infringed her right to protection of
her private life as guaranteed by Article 8 of the Convention, which
reads as follows:

“1. Everyone has the right to respect for his
private and family life, his home and his correspondence.

2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms
of others.”

The Government submitted as their main argument
that the measure in question had not amounted to interference, but had
fallen within the ambit of the right of access to the civil service,
which was not a right guaranteed by the Convention. In order to ensure
the same conditions of access for everybody in accordance with Article
33 § 2 of the Basic Law, the legislature had made special provision
in Annex I to the German Unification Treaty for scrutiny of the personal
aptitude, among other things, of civil servants from the GDR. In the
alternative, the Government submitted that if there had been any interference,
it had been prescribed by law, had pursued, inter alia, the legitimate aims of preventing disorder and
protecting the rights of others and had thus been necessary in a democratic
society. In the instant case the German courts, which had been required
to examine individually persons dismissed pursuant to Article 1 § 5
of Annex I to the German Unification Treaty, had provided detailed grounds,
taking account of all the criteria established by the case-law, for
their decision that the applicant could no longer be tolerated as an
employee of the civil service. Indeed, it had emerged that the applicant
had not only signed an undertaking to collaborate, but had actually
collaborated with the GDR Ministry of National Security and had therefore
deliberately lied when she had filled in the questionnaire given to
her.

The applicant, for her part, submitted that the
German authorities had infringed her right to protection of her private
life by using as evidence against her a confidential declaration which
she had signed at the material time with the GDR secret services, her
subsequent dismissal being merely the consequence of that infringement.
She alleged that the interference had been unjustified as it had been
neither prescribed by law nor necessary in a democratic society for
the achievement of any of the aims set forth in Article 8 § 2 of the
Convention. As regards the question of lawfulness, no provision of any
law or of the German Unification Treaty indicated that a citizen of
the GDR was obliged to disclose his or her collaboration with the Ministry
of Security. That treaty provided a legal basis for dismissal, but did
not mention anywhere that a person was obliged to disclose that fact
and incriminate themselves. With regard to the purpose, the applicant
did not see how the pursuit of her activity as a nursery-school teacher
would endanger national security or infringe the rights of others. Lastly,
the applicant reiterated that her collaboration with the Ministry of
National Security had been of minor importance, given that she had merely
accompanied her husband, and that the collaboration in question had
gone back to such a distant period that it could no longer be held against
her today and could not in any circumstances justify her dismissal.

The Court reiterates that as a general rule the
guarantees in the Convention extend to civil servants (see, in particular, mutatis mutandis, Vogt v. Germany,
judgment of 26 September 1995, Series A no. 323, pp. 22-23, § 43). It
follows that the applicant’s status as a civil servant did not deprive
her of the protection of Article 8.

The Court points out from the outset that after
German reunification civil servants from the GDR who had been incorporated
into the FRG civil service had to reply to a questionnaire asking them
whether they had in the past collaborated with the GDR Ministry of National
Security.

In the instant case the applicant was dismissed
from the civil service because the federal commissioner responsible
for examining the data of that ministry discovered that she had collaborated
with the GDR Ministry of National Security, whereas she had denied this
fact when the question had been put to her.

The use of the data by the federal commissioner
is thus closely linked to the applicant’s dismissal, the latter being
the direct consequence of the former.

The use of information about the political and/or
private past of an individual may be regarded as an interference with
private life (see, mutatis mutandis, Leander v. Sweden, judgment of 26 March 1987, Series A no. 116,
p. 22, § 48; Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II;
and Rotaru
v. Romania [GC], no. 28341/95, § 46, ECHR 2000-V).

The special feature of the present case is that
its background is the incorporation of the GDR into the FRG – two
States governed by different legal systems – and that after reunification
GDR civil servants were incorporated into the FRG civil service on the
conditions laid down in the German Unification Treaty.

However, even if the measures in question were
to be regarded as an interference with the applicant’s right to protection
of her private life, that interference was “prescribed by law”,
pursued one or more legitimate aims under paragraph 2 and was “necessary
in a democratic society” to achieve them.

With regard to the issue of lawfulness, the Court
reiterates that the level of precision required of domestic legislation
– which cannot in any case provide for every eventuality – depends
to a considerable degree on the content of the instrument in question,
the field it is designed to cover and the number and status of those
to whom it is addressed. It is, moreover, primarily for the national
authorities to interpret and apply domestic law (see, mutatis mutandis, Vogt, cited above, p. 24, § 48, and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96,
35532/97 and 44801/98, § 49, ECHR 2001-II).

In the instant case the applicant was dismissed
pursuant to section 1(2) of the Unfair Dismissal Act, taken together
with Article 1 § 5 of Annex I to the German Unification Treaty (see
“Relevant domestic law and practice” above), which expressly provides
that a civil servant may be dismissed on such grounds as having collaborated
with the GDR Ministry of National Security.

The obligation on the applicant to reply truthfully
to the questions about her possible collaboration with the GDR Ministry
of National Security was based on Article 242 of the Civil Code, taken
together with Article 1 §§ 4 and 5 of Annex I to the German Unification
Treaty and the relevant case-law of the Federal Labour Court (see “Relevant
domestic law and practice” above).

Lastly, the disclosure of information by the
federal commissioner responsible for examining the data of that ministry
was based on sections 19, 20 and 21 of the Law on the Data of the GDR
State Security Police (see “Relevant domestic law and practice”
above).

Those provisions are precise and accessible to
everyone, and the applicant, as a civil servant incorporated into the
FRG civil service, must have expected to be asked questions about her
past conduct and any possible collaboration with the GDR Ministry of
National Security. The interpretation of those provisions by the Berlin
Regional Labour Court and the Federal Labour Court does not, moreover,
appear to have been arbitrary. Lastly, the Federal Labour Court and
the Federal Constitutional Court gave a clear definition of the concept
of aptitude for the civil service and of the criteria applicable in
the examination of each individual case.

As regards the question of purpose, the Court
considers that the measure in issue pursued a public-interest aim: it
appeared legitimate for the FRG to carry out an ex post facto review of the conduct of persons who, after reunification,
had been incorporated into the civil service, the members of which are
the guarantors of the Constitution and of democracy. It also appeared
legitimate for the FRG to dismiss from the civil service, after examining
each individual case, members who did not satisfy those criteria, for
example because they had collaborated with the GDR Ministry of National
Security, and above all because they had lied about their collaboration
to their new employer.

The conditions laid down in the German Unification
Treaty to that end were the logical counterbalance to the wholesale
incorporation of civil servants from the GDR into the FRG civil service,
and were given practical expression by the question put to them in that
connection after reunification.

The measure in dispute therefore pursued the
legitimate aims of preventing disorder and protecting the rights of
others.

Nevertheless, it was plainly of some seriousness,
since the applicant was dismissed from the civil service and lost her
job.

Furthermore, the period of her collaboration
with the GDR Ministry of National Security preceded by some ten years
the questionnaire to which she was asked to reply.

However, the Court notes that the applicant was
able to appeal against her dismissal by the administrative authorities
to the German courts, which examined in detail the circumstances surrounding
the applicant’s collaboration with the GDR Ministry of National Security
and her subsequent conduct in addition to the arguments which she had
submitted. In that connection the Regional Labour Court’s main criticism
of the applicant was that in the questionnaire she had denied having
actually collaborated or signing an undertaking to do so, whereas she
could not have forgotten it, given the nature and period of that collaboration,
even if it had been while accompanying her husband. Those were the main
factors which led the German courts to conclude that the lack of sincerity
and honesty in the reply given had destroyed the trust which the authorities
had to have in the applicant and rendered her continued employment in
the civil service unacceptable. In their decision the German courts
also referred to the relevant established case-law of the Federal Labour
Court and the Federal Constitutional Court.

The Court therefore considers that the penalty
imposed on the applicant, although severe, must be viewed in relation
to the general interest of German society, regard being had to the exceptional
historical context in which she was incorporated into the FRG civil
service and to the conditions set forth in the German Unification Treaty,
of which she must have been aware.

In the light of all those factors, especially
the exceptional circumstances relating to the reunification of Germany,
the Court considers that, in so far as there was any interference, it
was not disproportionate to the legitimate aim pursued, regard being
had to the State’s margin of appreciation in such matters.

It follows that this complaint is manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant also complained that the decision
in issue had infringed her right to equality of treatment and had therefore
breached Article 14 of the Convention taken together with Article 8.
Article 14 provides:

“The enjoyment of the rights and freedoms set
forth in this Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national
minority, property, birth or other status.”

Having regard to its line of reasoning under
Article 8 of the Convention, the Court considers that no separate issue
arises under Article 14.

It follows that this complaint is likewise manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention.

3. Lastly, the applicant argued that she had not
had a fair hearing within the meaning of Article 6 § 1 of the Convention,
the relevant part of which provides:

“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law...”

The applicant submitted that the data of the
GDR Ministry of National Security were confidential in nature and could
not properly be used as evidence against her. Nor could she be required
to incriminate herself seeing that the right to silence existed not
only in criminal proceedings, but also in other types of proceedings
involving a risk of disciplinary sanctions.

The Court reiterates at the outset that disputes
concerning teachers, and therefore a fortiori nursery-school teachers, belonging to the public
service fall within the scope of Article 6 § 1 (see Pellegrin v. France [GC], no. 28541/95, § 66, ECHR 1999-VIII).

It further points out that, according to Article
19 of the Convention, its duty is to ensure the observance of the engagements
undertaken by the Contracting Parties to the Convention. In particular,
it is not its function to deal with errors of fact or law allegedly
committed by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention. Moreover,
while Article 6 of the Convention guarantees the right to a fair hearing,
it does not lay down any rules on the admissibility of evidence or the
way it should be assessed, which are therefore primarily matters for
regulation by national law and the national courts (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140,
p. 29, §§ 45-46, and Garcia Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).

In the instant case the German authorities cannot
be criticised for using as evidence data held by the GDR Ministry of
Security, given that the applicant had the opportunity to challenge
their decision in the labour courts and to submit, at the various stages
of the proceedings, any arguments she considered relevant to her case.

As the Court has already stated above, the labour
courts examined in detail the circumstances of the applicant’s collaboration
with the GDR Ministry of National Security and the arguments she had
put forward.

With regard, lastly, to civil proceedings and
disciplinary sanctions, which are not criminal in nature, the applicant
cannot rely on the right not to incriminate herself because that is
a right which is available to an accused in criminal proceedings and
which is linked to the presumption of innocence (see, in particular, Saunders v.
the United Kingdom, judgment of 17 December 1996, Reports 1996-VI, p. 2064, § 67).

In conclusion, the Court considers that, taken
as a whole, the proceedings in issue were fair for the purposes of Article
6 § 1 of the Convention.

It follows that this complaint is likewise manifestly
ill-founded within the meaning of Article 35 § 3 of the Convention.